A Due Diligence Confidentiality Agreement is a crucial document used in Australian business transactions when one party needs to disclose sensitive business information to another party for evaluation purposes, typically in the context of a potential merger, acquisition, or investment. The agreement is designed to comply with Australian legal requirements, including the Privacy Act 1988 (Cth), Corporations Act 2001 (Cth), and relevant common law principles. It establishes clear guidelines for handling confidential information, including financial data, trade secrets, customer information, and other proprietary details. This document is typically executed before any substantial due diligence information is shared and remains effective throughout the due diligence process and often for several years afterward.
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1. Parties: Identification of the disclosing party, receiving party, and their authorized representatives
2. Background: Context of the due diligence process and purpose of the agreement
3. Definitions: Key terms including 'Confidential Information', 'Authorized Purpose', 'Authorized Recipients', 'Due Diligence Process'
4. Scope of Confidential Information: Detailed description of what constitutes confidential information and any exclusions
5. Obligations of Confidentiality: Core confidentiality obligations, including use, storage, and protection of confidential information
6. Permitted Disclosures: Circumstances under which confidential information may be disclosed and to whom
7. Security Measures: Required security protocols and measures for protecting confidential information
8. Return or Destruction of Information: Obligations regarding the return or destruction of confidential information after the due diligence process
9. Duration and Survival: Term of the agreement and which obligations survive termination
10. Breach and Remedies: Consequences of breach and available remedies including injunctive relief
11. General Provisions: Standard boilerplate clauses including governing law, jurisdiction, and entire agreement
1. Electronic Information Handling: Specific provisions for digital data rooms and electronic information sharing - used when due diligence is conducted primarily through digital means
2. International Transfer of Data: Provisions governing cross-border transfer of information - required when parties are in different jurisdictions
3. Insider Trading Prevention: Special provisions for listed companies to prevent insider trading - needed when target is publicly traded
4. Privacy Compliance: Specific obligations regarding personal data handling - required when confidential information includes personal information
5. Non-Solicitation: Restrictions on soliciting employees or customers - optional protection often requested by disclosing parties
6. Stand-still Provisions: Restrictions on acquiring shares or assets - relevant for public companies or competitive situations
7. Regulatory Compliance: Industry-specific compliance requirements - needed for regulated industries like financial services or healthcare
1. Authorized Recipients: List of individuals and advisors authorized to access confidential information
2. Security Protocols: Detailed security requirements and procedures for handling confidential information
3. Information Categories: Categorization of different types of confidential information and corresponding handling requirements
4. Data Room Rules: Specific rules and procedures for accessing and using the data room
5. Form of Confidentiality Undertaking: Template undertaking to be signed by authorized recipients
6. Return/Destruction Certificate: Form of certificate confirming return or destruction of confidential information
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